V.I. Supreme Court questions government's rejection of lowest bid for Main Street project on St. Thomas


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ST. THOMAS - The V.I. Supreme Court has sent the case involving the procurement process for the Main Street Enhancement Project back to the V.I. Superior Court to be considered on the merits.

Tip Top Construction, the low bidder in the federally funded project, took the government to court in December after the project was awarded to Island Roads.

Tip Top asked for a preliminary injunction and a temporary restraining order to prevent the project from going forward until the court had heard the legal arguments of the case.

The Superior Court found that Tip Top met three of the four requirements for a preliminary injunction to be granted, the standard it did not meet was likeliness to succeed on the merits.

Supreme Court Chief Justice Rhys Hodge wrote in the high court's opinion issued Friday that the lower court made this determination based solely on the testimony of one member of the bid evaluation committee.

The high court also found that the government did not provide a written explanation for rejecting the lowest bid.

Tip Top Construction President Joe Hollins has said the V.I. government is misinterpreting federal procurement guidelines.

The project already is designed, and the contract is solely for the purpose of construction, therefore the only thing that can be taken into account in selecting a bid is the dollar figure, according to Hollins.

Tip Top's lawyer, Stefan Herpel, said in oral arguments last week that if the estimate does not match the bid it is considered mathematically imbalanced, but that is not reason alone to reject the lowest bidder unless the government produces a written explanation for a material imbalance.

A material imbalance would be proof that the bid did not take into account the required material or expenses necessary to complete the job.

The only written explanation was a single page memo from the evaluation committee, dated Nov. 8, 2013.

"Since the November 8, 2013, memorandum simply states that Tip Top submitted a mathematically unbalanced bid, it is not possible to ascertain whether the evaluation committee performed such an analysis, or impermissibly applied a per se rule to exclude Tip Top's bid solely because it was mathematically unbalanced," Hodge said in the appellate court's opinion.

"Accordingly, since it appears the government failed to provide a sufficient written justification for rejecting its bid, and the post hoc testimony of a single evaluation committee member cannot cure the insufficient justification, Tip Top has shown that it is likely to succeed on the merits with respect to the claim that the government rejected its bid and awarded the contract to Island Roads in violation of pertinent law, and is thus entitled to a preliminary injunction," Hodge wrote.

The government's response

Government House issued a written statement on the ruling Sunday.

"The government remains committed to a fair and legal selection process of the best contractor for this project and to getting this project started and completed timely," Government House spokesman Jean Greaux Jr. said.

V.I. Public Works Commissioner Darryl Smalls said it is vitally important that the matter be resolved quickly so as to not delay the project.

"We are at a critical crossroad in our continued economic development and the timely start of this project will solidify both our position and our market share within the competitive regional tourism industry. All one has to do is look closely at our neighboring islands to observe the significant capital investments taking place at tourist destinations throughout the region," Smalls said.

Smalls and Property and Procurement Commissioner Lynn Millin Maduro will consult with the V.I. Justice Department to determine the government's next steps following the court decision, according to Government House.

Tip Top Construction did not comment on the ruling.

The project

The Main Street Enhancement Project is managed by the V.I. Public Works Department, which, in conjunction with the V.I. Water and Power Authority's downtown Hazard Mitigation Project, will widen and beautify Main Street from Post Office Square to the former Enid Baa Library by placing above-ground power lines underground.

The project will place palm trees in groups of four along the street, with areas for seating and light fixtures. Blue biche sidewalks will replace the concrete, and bollards will separate vehicular traffic from foot traffic.

The project is primarily funded by the Federal Highway Administration.

The work will be done at night so as not to impact daytime commerce on Main Street, according to Public Works officials.

The project's timeline was to run from May to November of this year.

- Contact reporter Aldeth Lewin at 714-9111 or email alewin@dailynews.vi.

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